This is a place for members of Home of the Brave to post thoughts, insights, and opinions about events related to the investigation of non-combat deaths of US soldiers, sailors, marines, and airmen.

Saturday, May 19, 2012

Death Memorial

My younger brother, LTC Rocky Baragona was killed on May 19 2003, on his way home, in Safwat Iraq, by Kuwait Gulf Link Transport. One of their flatbed tractor trailers, driven by a driver with improper papers and a truck with missing license plates, suddenly jackknifed and landed on his Humvee, crushing him instantly. Rocky, a decorated career soldier, with a flawless military record who had been in the top 5% of his West Point Class, proudly served his country with honor as the Commander of the 19th Maintenance Battalion out of Fort Sill, Oklahoma.

Because of the irresponsible contracting practices by this DOD multibillion dollar foreign contractor, my brother was killed.

Our family received a miserable AR15-6 report eight months later: two days before Xmas. The report gave no information about the company or the driver that killed him. The accident scene photos later showed KGL’s name 20 inches high written across the front of the vehicle with other KGL trucks and 18 people at the scene that day. Some inaccuracies surrounding the crash smeared his good honor with insinuations that his death was his own fault. The officer who accompanied the report said in all of his years, he had never seen anything quite this bad. It was a dark day.

No family should ever have to do their own investigation into the death of their loved one. In shock and grief, following this report, we did just that.

Distraught and with disbelief toward the military, who appeared to now have abandoned and betrayed us, we looked for legal recourse. After 700 attempts failed to find an attorney who would consider our case, we found Steve Perles’ Law Firm, experts at plaintiff claims in international laws and Middle Eastern affairs. Their skills were the cutting stone for what appeared to be an impossible set of circumstances and we relied heavily on their skills and expertise. Mr. Perles himself taught us, in spite of our grief, how to reach out to the military, Congress, and even the White House to get results.

By 2005, with his guidance and the support of Sen. DeWine we received, 2 years later from Brig. Gen. Wright, a second, still faulty revised AR15-6 official report stating Kuwait Gulf Link Transport indeed was responsible for the death of my brother. It was a huge victory that allowed us to let go, for the moment, of a missing criminal investigation, required but never done at the time by the Army. It now appeared impossible to do a criminal investigation, as the evidence seemed all but lost. With KGL now officially in an Army report found responsible for his death we could move forward for the first time. It was our first piece of legal evidence it meant Justice for Rocky could now be found civilly in a US court of law.

Oblivious to all of this was the company that killed him. You see KGL, during this time, was enjoying and reaping the benefits of being a DOD multimillion dollar foreign contractor. Through US taxpayers they were growing from a mid size company to a major player in the contracting world. Quickly learning the contracting game, they chalked up military subcontract victories from other USG Prime Vendors like Agility, CSA, KBR.

KGL’s success in USG contracting soon lead to major changes in their business structure, I watched the forming of the KGL holding company, with 7 plus subsidiaries. It was a $30 million investment into Circle Oil, KGL Petroleum and the KGL Port Development and KGL Shipping lines with all of the money going back into the middle east. Then there was the development of the RAK area near Iran. Diamond trading, a private investment company in the Cayman Islands, the investment in the Philippines with Clark Air Force Base and on and on.

Did this get your attention? It sure started to get mine!

The US taxpayer was not getting a dime back except a trade for goods and services in the Iraq War — KGL was getting a lot.

At the same time I watched KGL also begin launching a major campaign to court the US Military with their website, bragging of their becoming a prime vendor for the Army.

However, all this growth did nothing to help KGL’s military victims. In our case, when approached to work towards a resolution in the death of LTC Baragona, they turned a deaf ear over and over again.
At first, we simply wanted an answer to what happened on May 19 2003, but as time went on and the silent arrogance grew, we began to question, “Why didn’t this company want to communicate?” It was concerning to us, that a military contractor who had the obvious skill to win millions in US military contracts could not file an insurance claim. Or maybe they had something to hide? We asked ourselves, “Why did a potential Prime Vendor want to take these kind of risks when millions of future contracts could be at stake? Was it cultural difference, arrogance?”

It seemed stupid on their part. Maybe it was bad advice from lawyers who wanted their own financial gain? Or did this contractor really have something to hide? KGL’s silence wore on us and it raised all of our suspicions about the secret world of contracting, leading us deeper into the investigation of their business practices.

During these years, we learned through newspaper accounts that KGL truck drivers had complained of being trafficked against their will in order to deliver goods to US troops in Iraq. Some were kidnapped and other’s were arrested for smuggling grains on the black market. An ex employee spoke of insurance fraud and falsification of documents to win Army contracts, but was too afraid to do anything about it. KGL was banned in India for false recruiting scams which tricked much-needed truck drivers to deliver goods to Army bases in Iraq.

The truth began to change, and we learned all too well how quickly the US Army looked the other way when a contractor like KGL used questionable practices. There simply was no oversight. I was appalled at the acceptance of our military to do nothing about any of it. Isn’t this what we asked our soldiers to fight and die for: democracy and a free life for those persecuted? Yet we allowed our defense contractors to perform government contracts using human trafficking? It was clear that forced labor in contracting was an acceptable way of doing business. The Army’s position was to Protect and supply the troops . But at what and at whose cost did we do this?

Undeterred, we stayed focused on our case and worked towards creating communication solutions with KGL through the Kuwaiti Ambassador and their Prime Minister, using the Army and many members in Congress as our messenger.

With no response from KGL on all fronts, we felt compelled to file a wrongful death suit in the courts as our only hope for accountability.

So it began: the horrible task of going through Rocky’s last days. We had to painfully recount each moment of his dying, spending hours at researching the FARS, gathering evidence by reconstructing the accident scene, finally dividing his life into dollar values to determine a means for restitution (a system of debilitating humiliation).

All of this was done so that we could sit across a table to look into somebody’s eyes from KGL to ask “Why?” “Why the silence? And what are you/KGL willing to do since your company, your driver, killed him?“ We wondered aloud among ourselves.

Could we keep our promise to get justice for Rocky with a company who could not see how their silence looked to everyone in America, well, except the Army? …….and the big question… did this really even serve justice? A lot of doubt came over us, And still we continued

This time to the White House. Through a chance encounter, I was fortunate enough to get a moment to speak with President Bush who promised to help us fight for answers. The President assigned our case to the White House military liaison, Terry Chauncey, who we loved at first sight. He facilitated a Presidential inquiry to the DOD debarment office asking for KGL’s participation. Otherwise, they would face suspension and possible debarment. It was a good moment and we quietly celebrated.
We thought, “This is the end, it will be over soon…you cannot get much higher than the President of the United States of America. Commander in Chief…right!!!! Now, thank God. Finally some peace: we can get some real answers and hold KGL accountable.

Not so fast…

The Army sent out an official request for KGL’s response from their office.

KGL then hired an ex-debarment official, retired Gen. Bednar, of Crowell and Moring, as their counsel. He quickly went into the DOD debarment office and had off record discussions about our case. Ahhh — the good ole boy club. Something we should have seen coming, but it seemed incredible that a retired General would defend a foreign contractor on a case from the President of the United States against an Army family. Rocky was a Commander who had served in Iraq and died for his country!

Well, believe it — it happened

The debarment office quickly ended our relationship, except for one last off the record conversation my father had with the Army Debarment official, who told him, “ Hey Dominic, what can I do? This guy used to be my boss.” The Army official said that there was nothing more he or we could do unless we won the case.

How is that for pressure?

And how, may I ask, is it possible for KGL, a foreign contractor serving the interest of the United States, to be able to trump the debarment inquiry from the President ,Commander in Chief?
Well they did, and the debarment inquiry very quietly went on hold –indefinitely. The White House Liaison was fired and sent to Japan. We never saw another person from the White House.
We learned in that moment, that we had no idea what we were dealing with.

The game of High Stakes Poker just went up.

They showed us who was boss, KGL continued their position of silence a lot more confidently, even ignoring service to participate in the current court proceeding by the US Federal Court’s Judge Duffy. Finally, in response to their arrogance, the Georgia Courts would agree to our argument for jurisdiction and awarded our family the default judgment of $4.9 million dollars.
Seems incredible doesn’t it?

This victory, however as we were warned, would be short-lived.

Why?

Personam Jurisdiction — which meant the US could rule against the settlement if KGL could prove they had no business ties with the United States. (Which to us seemed impossible given the millions and millions in payments KGL had received as a government contractor from the Army and the Air Force, and KBR, Bechtel…it’s impossible to name them all..

And as you guessed it: KGL would appeal using this law “personam jurisdiction”. I call it a “get out of court free card.” gift wrapped from the FARS.

We knew we were going to lose, but we didn’t care…The battle went forward.

KGL used all means available to fight the jurisdiction with an entire team of lawyers who scheduled a Sept 11th deposition with KGL officers finally coming to America.

The silence was broken. We had waited a long time for this.

My first and only meeting with them, began with a handshake and an apology, asking me not to take any of this personally. OMG….OMG….Who says that? I was locked into a gag order by my lawyer or I would have come out with every*7%%# I could think of .

Instead I sat there seething while in the deposition…listening to their testimony about how small and helpless they were. Didn’t we know it was a war? Their limited employees lost records; there was no help to be able to find them; and on and on… I couldn’t believe this. Did they not know their website was public domain? It currently stated they had over 6,000 employees! This approach could not work in court!

Well, I was wrong.

The court date came up and KGL with their team of lawyers, swept into the courtroom to fight the personam jurisdiction On the stand their witnesses gave the impression KGL was the size of a shoe department behind the bowling alley.

It made me want to puke. The worst part was watching my father and mother’s heads sink into their laps in utter despair. They were humiliated by the experience.

Did this affect KGL?

Oh yeah. Right!

– So much so, that each time someone got off the stand from their side, I would see the smile and knowing looks between them and the slight side high five — like “Good Job…!!!!!”

The judge watched too. It didn’t really matter. The Judge’s hands were tied by the law. This was America, where the law actually meant something.

It seemed that although the Judge would have liked to award justice to us, this would have required a path toward new law he was unwilling or unable to take. Once awarded a $4.9 million default judgment,

Judge Duffy would be forced to overturn the decision based upon KGL’s claim of Personam Jurisdiction.

Disbelief and shock does not come close to expressing how discouraged we were by the process at that time!

Our Advice for future cases: Do not try for your day in court until the law can be changed for military families. It was too much — like going through his death twice.

After digging out of our depression, we shook off the pain, and looked again for justice. This time we would work to influence Congress by using our personal experience to improve future legislation.
We poured our hearts and souls into learning about personam jurisdiction for foreign contractors and the fight in us really got stronger Washington saw us , monthly, as we spoke with every legislative staffer that would listen to us as we raised problem after problem we had faced. Our fight became a National Issue, moving from our own personal battle to one that could be used as a model to change military and public policy.

Our message was clear: lack of personal jurisdiction rights for military families meant that if you served your country, and were harmed or died at the hands of a foreign contractor, or a domestic contractor using a foreign subcontractor, the company never could be held accountable in a US court. They have the protection of US law and the support of the US Army. The conflict of interest was glaring. The Army could not be unbiased in an investigation of their own when it had to choose between their soldiers or their contractors.

Soon a second soldier would die in another crash with a KGL vehicle in 2008 with still more TCN’s victims’ complaints hidden in Middle East newspapers.

At the urging of our lawyers, Washington served as a second home. We found ourselves bringing brownies, the only allowed thank you, to the many Senate and Congressional staffers who listened to and learned from our first-hand experiences.

Our case moved from one of personal to one of national significance, turning into a model study of foreign contracting policy loopholes in the FARS. We showed a history of the military’s overdependence with other military contractors whenever media attention towards bad contracting gained a national spotlight in cases such as Blackwater, the electrocution of Ryan Maseth lawsuit, and the Jamie Leigh Jones rape case. On and on we complained for ourselves and all of the other victims that no one knew about.
It was during this process that the LTC Rocky Baragona Act was born.

Lunchroom conversations between staffers brought our family’s plight to the attention of Sen. Claire McCaskill, who chaired the Contracting Oversight Committee. The first inkling of legislation came to her from a West Point military staffer on her team, Stephen Hedger. Hedger shared same birthday as Rocky, June 14th Flag Day, the Army’s Birthday and he was also a West Point Graduate.. Steve called us in on one of our visits to tell us about the legislation, and we jumped at the opportunity to help move it forward.

The LTC Baragona Act we learned, in simple terms, will stop foreign contractors from evading responsibility in civil actions and require them to participate in the US court system or face debarment.

No longer could companies like KGL put military families through the emotional turmoil we had been through. A sister bill sponsored by Congressman Tim Ryan (who had attended the same high school as my brother) would soon follow. The bill was now gaining support on a bipartisan basis from both sides of the aisle with Senators Collins, Bennett, Brown and Martinez signed on.
Dominic Baragona, my father, testified at a homeland security hearing on the bill to ask for the Wild West of Contracting used by KGL to end. He pleaded to have what happened to us never happen again. It was an emotional hearing. Sen. Claire McCaskill stood up and spoke words of dismay in an open forum about how a military family would be forced to do their own investigation. It was a small moment of triumph in Rocky’s name.

The hearing was followed with a letter from Representatives Tim Ryan and Steve Driehaus to the Department of Justice with a request for a criminal investigation of KGL’s unethical business practices in both our case and that of others.

In the case of KGL’s bad practices, our family continued to dig further and found new evidence of their subsidiary company, “Combined Shipping Company”. This company is in a joint business venture with the Iranian Government in partnership with a company banned on the US treasury SDN list as a proliferator of WMD’s IRISL’s Val Fajr. We turned all of this over to DODIG with further evidence from a newspaper article showing that the company wanted to increase their presence in the port and shipping industries while IRAN was snubbing their nose at the US/Iranian Sanctions.
Our discovery helped to lay the groundwork for section 102 in the Iran’s Sanction’s Act, with the support of a consultant on our case, Andy Cochran, from the Perles Law Firm. A letter to Secretary of Defense, Robert Gates, from Congressmen Brad Sherman and Ron Klein has now asked that KGL not be considered for future procurement contracts. Again, along with Congress, we have personally asked for KGL’s debarment. Currently KGL is bidding on over 2 billion in US military contracts.
The curtain is starting to be pulled back on bad contracting players. Foreign and Domestic Contractors have been blatantly abusing their immunity, hiding behind jurisdiction, with little oversight for far too long.

The danger of our US Military’s overdependence on contractors allows for minimal oversight and is a minefield for corruption on both sides.

The Baragona case vs. KGL represents most of what is wrong with foreign contracting companies who use taxpayer dollars to further a war for their own profits; putting in harm’s way all of our brave soldiers who have relied on them as their base for support.

American citizens must demand from our policy makers the courage to change these laws with clear lines on how to enforce them. Families like ours need solutions in jurisdictional laws, so companies like KGL do not go unnoticed. We applaud Sen. McCaskill and Rep. Sherman for their efforts to level the playing field between domestic and foreign contractors.

With the passage of the Iran’s Sanction Amendments and the potential for the “LTC Rocky Baragona Act” to become law, we can balance contracting performance in our favor. This will allow for due process against bad players to take place, which in turn, forces other foreign companies to realign their policies with US principles if they want to do business with us.

Our fight for justice is far from over. We went to Washington yet again for the Weekend of Remembrance, honoring all our soldiers who have paid the ultimate sacrifice. We visited Arlington to talk to Rocky and we updated him on our criminal investigation hopes.

We also visited our staffers and lobbied on behalf of the bill. All of it has been worth it.
Rocky would say “The Truth has Changed” and we would agree.

“Patriotism is not a short and frenzied outburst but tranquil and steady dedication of a lifetime.” It was a model for my brother’s life.

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Our Loved Ones

Families

"I told them, 'Hey, if you don't want to deal with mourning families, then recruit orphans."

Peggy Buryj

"After the truth of Pat's death was partially revealed, Pat was no longer of use as a sales asset, and became strictly the Army's problem. They were now left with the task of briefing our family and answering our questions. With any luck, our family would sink quietly into our grief, and the whole unsavory episode would be swept under the rug. However, they miscalculated our family's reaction."Kevin Tillman

"...our treatment by the country for which our loved ones gave their lives has added another dimension of grief and difficulty. Having one another gives us the encouragement to continue."

Joan L. Piper

"The greatest disappointment, is in our country whose leaders plainly have an agenda that values the establishment over the individual, form over fact, expedience over truth. All of us morn the loss of our loved ones, but we also morn the loss of respect that we all have had for our country."

Dr. John Sabow

"I will review these records to identify what led to [Phillip's] murder and the acquittal of his murderer," Esposito said Friday. "In fighting for justice for Phillip, my daughter and myself, I also fight for justice for all officers and servicemembers. No other family should have to suffer as we have." Siobhan Esposito

Historical Fact

"Of the more than 274,000 officers and men who served in the army during the Spanish-American War and the period of demobilization, 5,462 died in the various theaters of operation and in camps in the a U.S. Only 379 of the deaths were battle casualties, the remainder being attributed to disease and other causes."

Source: Encyclopedia of American History by Richard Morris

In 1898, thousands of soldiers got food poisoning from meat packed by Armour and Company and sold to the Army. There are no figures on how many of the five thousand noncombat deaths were caused by this.

The Oxford Companion to American Military History estimates that between 2 percent and 25 percent of the casualties in America's wars are attributable to friendly fire.